Bush Wiretapping: Known Unknowns Remain

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Bush Wiretapping: Known Unknowns Remain

It's no secret that lawyers in the Bush Administration's Justice Department wrote dozens of memos approving torture and domestic surveillance – it's just that the Admnistration kept most of them secret by claiming that national security would be compromised if the public read legal analyses disavowing the Fourth Amendment and Geneva Convention.

And also with that release, the list of known knowns and known unknowns has grown – at least when it comes to Office of Legal Counsel rulings. That's the formerly obscure office that tells the executive branch what is and isn't legal.

There are now 61 known Bush Administration OLC opinions relating to domestic spying, torture, rendition and detention, according to the ACLU's latest tally (.pdf). Most are still unpublished.

So what do we know we don't know about how far Bush went when he ordered the nation's military to warrantlessly spy on Americans' phone and internet usage? What don't we know about how Bush's lawyers justified that spying?

All of the following memos are known to exist, mostly through disclosures to the ACLU via an ongoing lawsuit against the JusticeDepartment.

Another Yoo memo dated October 4, 2001 advising AlbertoGonzales, then the Counsel to the President, what "legal standards governed the use of certain intelligence techniques."

A November 2001 memo from Yoo to then Attorney GeneralJohn Ashcroft regarding the legality of "communication intelligence activities," disclosed in the same case.

On January 9,2002, Patrick Philbin a Deputy Assistant Attorney General* at the OLC, wrote Ashcroft a memo described as the "Attorney General’s review of the legality of the President’s order authorizing warrantless domestic wiretapping."

A month later, on February 8, Yoo wrote the military's top lawyer William Haynes to tell him that theForeign Intelligence Surveillance Act – which requires the government to get a court order to wiretap a suspected spy inside the country – does not apply in cases involving national security. And that Congress never meant it to. (Reportedly this was originally meant for Yoo's sideline as a stand-up comic).

Yoo wrote Ashcroft on October 11, 2002 with a memo on the "legality of certain communications intelligence activities."

Then on February 25, 2003, an unnamed Deputy Assistant Attorney General in theOLCsent Ashcroft another memo, this one concerning the "use of information collected in course of classified foreign intelligence activities

Then things get very interesting. On March 14, 2003, Jack Goldsmith, anAssistant Attorney General at OLC seems to have taken an interest inYoo's logic, and sent James B. Comey, the Deputy Attorney General a memo about classified foreign intelligence activities.

In less than a year from this memo, Comey and Goldsmith, with the help of Ashcroft as an unlikely civil lib hero, would force a showdown with the President over the warrantless wiretapping program, including a dramatic race to the hospital bedside of John Ashcroft and the threatened resignations of the Justice Departments' top officials including Ashcroft and FBI head Robert Mueller.

Next comes a series of memos related to the Ashcroft BedsideShowdown, where the OLC, under Goldsmith, found that some parts ofBush's warrantless wiretapping program were illegal.

There's the March 11, 2004 memo from Goldsmith to then White House CounselGonzales "clarifying OLC advice on classified foreign intelligence activities."

Another memo a day later went fromGoldsmith to Comey, and another the day after that – again fromGoldsmith to Comey. The following day Goldsmith sent a memo again toGonzales this time with "legal recommendations concerning classified foreign intelligence activities."

At the of March – having won the showdown with the White House – Comey sent Ashcroft a briefing and summary of the OLC's opinion of the revamped warrantless wiretapping program.

In mid-July of 2004, Goldsmith looked at Supreme Court rulings about detainees to interpret their effect on wiretapping.

And finally in August 2004, OLC attorney Daniel Levin sent Comey a proposed memorandum on a decision to be made regarding an "intelligence collection activity."

All 12 of these are still secret, though news reports indicate theObama Administration officials say it will be making more of them public in the coming weeks.

And there could be more. Memos we haven't learned the titles of.

Unknown unknowns.

Thankfully there's starting to be a whole lot fewer of those since January.

Correction: Repeating information from the ACLU's round-up, this post originally indicated that Deputy Assistant Attorney General Patrick Philbin wrote a memo in January 2002 about the spying program. It is only known currently that an unnamed DAAG wrote a memo at that time. It's unlikely it was Philbin, since in early 2002, very few people were allowed to know about the program. Wired.com regrets the likely error.